DAVID FRENCH: A conservative court rebukes Republican censorship

Tuesday, March 12, 2024 -- Those who don't pay close attention to the right-wing civil war might miss the extent to which the political and legal wings of the conservative movement often find themselves on opposite sides.

Posted 9:00 a.m. Mar 12 — Updated 9:00 a.m. Mar 12

EDITOR'S NOTE: David French is a New York Times columnist writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.”

Those who don’t pay close attention to the right-wing civil war might miss the extent to which the political and legal wings of the conservative movement often find themselves on opposite sides. For example, classical liberal Federalist Society judges and justices have blocked the new right time and again — from turning back Donald Trump’s attempts to overturn the election, to halting red-state attempts to implement college and corporate speech codes.

This month, the classical liberals prevailed again. A three-judge panel of the Court of Appeals for the 11th Circuit unanimously upheld a lower court injunction blocking parts of Florida Gov. Ron DeSantis’ notorious “Stop WOKE Act.”

Two of the three members of the appellate panel are Trump appointees, and a Trump appointee, Judge Britt Grant, wrote the majority opinion. The opinion itself is short and direct.

Florida barred mandatory diversity training programs that endorsed ideas its Republican leaders reject. Prohibiting the private expression of ideas the state dislikes is textbook viewpoint discrimination, what Grant calls “the most pernicious of dividing lines under the First Amendment.” Grant is correct — “No matter how controversial the ideas,” she writes, “allowing the government to set the terms of the debate is poison, not antidote.”

Grant’s opinion is particularly notable for another reason. Its opening paragraph is a subtle rebuke of the entire new right mindset. Grant writes:

“This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law and public policy. And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale.”

To understand the significance of that paragraph, one has to understand how much the new right adopts a framework that desperate times call for desperate measures. It even uses the question, “Do you know what time it is?” to indicate that America is allegedly facing an unprecedented challenge and teeters on the brink of destruction.

Yet the answer to division is dialogue, not censorship. Or, as Grant writes, “Intellectual and cultural tumult do not last forever, and our Constitution is unique in its commitment to letting the people, rather than the government, find the right equilibrium.”

The case is merely the latest example of conservative judges rejecting red-state authoritarianism. One hopes Republicans get the message eventually. If not, the legal losses will continue until Republican commitment to the Constitution starts to improve.

This article originally appeared in The New York Times.

Capitol Broadcasting Company's Opinion Section seeks a broad range of comments and letters to the editor. Our Comments beside each opinion column offer the opportunity to engage in a dialogue about this article. In addition, we invite you to write a letter to the editor about this or any other opinion articles. Here are some tips on submissions >> SUBMIT A LETTER TO THE EDITOR

Suggest A Correction